Procopio: Agent Orange and the blue water Navy

On December 7, 2018, the US Court of Appeals for the Federal Circuit is scheduled to hear oral arguments in a case called Procopio v. Wilke. Although this case has quietly made its way through the courts, it has the potential to dramatically change the manner in which the US Department of Veterans Affairs addresses service-connected disability benefits claims associated with exposure to Agent Orange.

The Background: Presumptive Exposure to Agent Orange

The use of Agent Orange in southeast Asia during the Vietnam War was prolific. The herbicide contained dioxin, which is a toxin that is known to have had devastating health effects on the men and women who served in Vietnam. However, when filing disability claims veterans often had difficulty providing the scientific and medical evidence necessary to prove that their particular illness or condition was caused by exposure to Agent Orange.

Following litigation regarding the issue, Congress passed the Agent Orange Act of 1991. Among other things, this Act created 38 U.S.C. § 1116. Under Section 1116, a veteran that served in the Republic of Vietnam who develops certain health issues is presumed to have been exposed to Agent Orange, and the herbicide is presumed to have caused the illness. These presumptions became a powerful tool that enabled veterans to more easily obtain service-connected disability benefits.

The Problem: The Boots on the Ground Policy

When addressing claims for benefits arising from Agent Orange exposure, VA created what has become known as the “Boot on the Ground” policy. Simply put, under this policy, only veterans that physically set foot on the dry soil or inland rivers of Vietnam are entitled to the presumptions arising under Section 1116. However, veterans that served off shore in the Blue Water Navy are not entitled to the presumptions.

Compounding the Problem: Haas v. Peake

The Boots on the Ground policy was challenged in a case called Haas v. Peake in 2008. The appellant who filed that case, Jonathan Haas, served in the Navy in the coastal waters of Southeast Asia during the Vietnam War. In 2001, Mr. Haas filed a claim for type 2 diabetes, peripheral neuropathy, and loss of eyesight arising from exposure to Agent Orange. Applying the Boots on the Ground policy, VA denied his claim for benefits.

After a series of appeals, the case was heard by the U.S. Court of Appeals for the Federal Circuit. The court concluded that the question of whether a veteran served in the Republic of Vietnam, as required by the statute, was ambiguous. Because of this ambiguity, the court reasoned that under the rules related to agency policies and regulations, VA’s interpretation would be controlling unless plainly erroneous. The court did not find the Boots on the Ground policy to be plainly erroneous; therefore, the policy was permitted to stand. It has remained the applicable policy for determining Agent Orange disability benefits claims for the past decade.

The New Court Challenge: The Procopio Case

Shortly before the Federal Circuit decided the Haas case, a veteran named Alfred Procopio, Jr., filed a claim seeking service-connected disability benefits for prostate cancer and diabetes mellitus type II with edema arising from herbicide exposure during the Vietnam War. Like Mr. Haas, Mr. Procopio served in the Blue Water Navy in the coastal waters of Vietnam, and it is undisputed that he never set foot on Vietnamese soil.

Mr. Procopio focused much of his argument on technical and historical evidence in an attempt to convince VA that, notwithstanding the presumption, he had — in fact — been exposed to Agent Orange by drinking water on the ship while in coastal waters. He also argued that the Federal Circuit’s decision in Haas failed to account for rules that require courts to interpret statutes in a manner that is most favorable to veterans, which is sometimes called the Pro-Veteran Cannon. In particular, Mr. Procopio argued that when deciding whether the phrase “service in the Republic of Vietnam” was ambiguous, the analysis must be conducted in a manner that is favorable toward the veteran. VA was not convinced by either argument, and denied the claim.

Déjà Vu: Back at the Federal Circuit

After a series of appeals, Mr. Procopio’s case is now pending in front of the Federal Circuit, which is the same court that issued the decision in Mr. Haas’s case. After VA and Mr. Procopio filed their written arguments, a three judge panel heard the parties’ oral arguments on May 4, 2018. The panel took great interest in both arguments raised by Mr. Procopio, and on the suggestion of the VA’s attorney, the court asked the parties to submit additional written arguments focused on the applicability of the Pro-Veteran Cannon.

After receiving the supplemental written arguments, the court decided to refer the case to an en banc panel — meaning that all of the Federal Circuit’s judges will decide the case, not just a three-judge panel. Since then, additional written arguments in favor of Mr. Procopio’s position have been submitted by almost a dozen veterans advocacy organizations, including the Big Six — Disabled American Veterans (DAV), Vietnam Veterans of America (VVA), Veterans of Foreign Wars (VFW), Paralyzed Veterans of America (PVA), American Legion (AL), and American Veterans (AMVETS), the National Organization of Veterans Advocates (NOVA), National Veterans Legal Services Program (NVLSP), and the Military Officers Association of America (MOAA). The full panel will hear oral arguments in just a few weeks.

Potential Outcomes:

The Federal Circuit’s order for supplemental written arguments, as well as referral of the case to the full court, indicate an interest by at least some of the judges to revisit the court’s decision in the Haas case. If Mr. Procopio prevails, it could mean that Blue Water Navy veterans will may become entitled to the same presumptions that benefit other veterans of the Vietnam War. It may also cause veterans and advocates to examine and challenge other policies and regulations that VA has implemented when it determined statutory language to be ambiguous. On the other hand, if VA prevails it may not only adversely affect Blue Water Navy veterans, but could also strengthen the agency’s argument that courts must show it deference when interpreting statutes and implementing policy and regulations.

The only thing that is certain is that the stakes are high for both sides.

This article is authored through the collaborative efforts of Travis James West and other legal professionals at West & Dunn, a law firm dedicated to providing high quality legal services to individuals and businesses, with a particular focus on assisting veterans of the United States Armed Forces.